Insult and Provocation in the Sense of Art. 177 Para. 2 SCC

Facts

The case concerns an insult by the complainant Kollbrunner, who referred to his opponents Merk and Christen as "Schufte" in a letter. This occurred after a cousin of Kollbrunner's had made a statement favorable to his opponents as a witness. Kollbrunner was found guilty of insult and sentenced to a fine. He filed a petition for annulment and argued that the behavior of his opponents constituted a provocation in the sense of Art. 177 Para. 2 SCC.

The parties were involved in a divorce proceeding and several defamation lawsuits. The complainant Kollbrunner had written a letter to his cousin, in which he criticized his statement and insulted his opponents Merk and Christen.

Considerations

The court had to decide whether the insult by Kollbrunner was directly provoked by the behavior of his opponents. According to Art. 177 Para. 2 SCC, the judge can exempt the perpetrator from punishment if the person insulted has given immediate cause for the insult through their unseemly behavior.

The court found that the prerequisite for exemption from punishment is that the insult was triggered by the reprehensible behavior of the person insulted and that it occurred immediately after the provocation. The characteristic of immediacy is to be understood temporally, in the sense that the perpetrator acts in the emotional state aroused by…